June 15, 2010

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The Justice Department seems to be cooling on the idea of changing U.S. law so terror suspects don't have to be brought to court immediately.

The head of the Justice Department's National Security Division, David Kris, suggested Friday that the issue of delaying so-called presentment of terror suspects before a judge or magistrate is not part of discussions the administration is having with Congress on codifying and expanding the public safety exception to the Miranda rule in order to allow for longer interrogations in terror cases.

"I do think both factors are in play, I would say neither makes the criminal justice system unusable, and we are always looking for ways to tune up and improve the system as much as we can. But right now all we’re really talking about, so far, is the public safety thing and not the presentment piece," Kris said during an appearance Friday at the Brookings Institution.

Kris didn't rule out seeking changes to presentment rules in the future and he didn't quite say that the administration wouldn't like to change those rules, but he suggested the administration was more comfortable tinkering with the pre-existing public safety exemption to Miranda than with carving out an exception to the federal rule requiring arrestees be brought promptly before a judge.

"In terms of presentment, the rule really is that you present them to a magistrate without unnecessary delay. ... That generally means within a number of hours or overnight; sometimes on the weekends it’ll be the next day. But in the time between the arrest and the presentment we have had pretty good luck — it’s not just luck — in getting information," Kris said.

On the Miranda front, Kris was pretty bold in saying the administration thinks "a lot more questioning" could be permitted if Congress stepped in.

"The threat posed by terrorism today is a lot more complex, sophisticated and serious than the threat posed by ordinary street-corner crime. And precisely because of that I think there are some good arguments that the public safety exception should likewise permit a lot more questioning where it’s in fact designed to mitigate that threat. And we would like to try to work with Congress to see if we can develop something here that might help us, maybe give us a little more clarity and flexibility in these very narrow circumstances now involving operational terrorists, basically," Kris said, during a speech and Q-and-A moderated by Brookings scholar Ben Wittes.

Last month, Wittes used a Washington Post op-ed to float the idea of changing the so-called presentment rule requiring that those arrested be brought to court promptly. Times Square suspect Faisal Shahzad agreed to waive that rule, but if he hadn't prosecutors would likely have had to bring him before a magistrate the day after he was arrested.

The New York Times followed up the day after Wittes's op-ed with a news story saying such a proposal was being considered by the Obama administration as part of a legislative package that would also make explicit the right of investigators to question a terror suspect for some period before advising the suspect of his or her Miranda rights.

Former White House counsel Greg Craig filled out the trifecta the next day with an ABC "This Week" appearance where he seemed to endorse some extra time before going to court in terror cases but warned that a delay of 15 to 30 days would "be a hard sell."

A congressional source subsequently confirmed to POLITICO that delaying presentment was one of the issues the administration was discussing with members of Congress as part of a package of terrorism-related legal changes.

However, Justice Department officials declined to confirm at that time that delayed presentment was part of those discussions.

I also noted in a POLITICO story last month that the Supreme Court ruled just last year that, under current law, if a court appearance is delayed for more than six hours after a suspect's arrest, any statement a suspect makes after six hours is supposed to be suppressed at trial unless there's good reason for the delay. Holding a suspect out of court for more questioning is not a valid reason, at least according to current law, the court said.

While Kris was pushing the idea of Miranda legislation last week, he didn't make a particularly urgent case for it because he argued that reading Miranda rights doesn't usually affect investigators' ability to get information.

Kris said his discussions with professional interrogators have led him to these conclusions: "People who are going to talk are going to talk based on the skill of the interrogator and the situation they're in. They're going to waive [their Miranda rights], and people by and large who don’t waive and invoke ... probably aren’t going to talk anyway in a voluntariness-constrained interview."

Kris added that that neither proposition is 100 percent true, so presumably that's why the administration would want more flexibility to delay Miranda, unless it's seeking the flexibility solely to try to counter Republican attacks on the point. Kris's boss, Attorney General Eric Holder, has also suggested that Miranda warnings sometime build rapport with suspects and make it more likely to get information, so it's not entirely clear what rationale the administration would advance for a proposed legal change that has already drawn fire from civil libertarians and defense attorneys.

Reader Comments (2)

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David Kris deigns to declare individuals as "operational terrorists" by fiat -- without benefit of any due process under the law.

David Kris subverts the U.S. Constitution and should be fired by the Attorney General.

David Kris is one of the Bush-era D.O.J. officials who helped enable, and continue to oversee, a program that is silently torturing extrajudicially "targeted" American citizens with microwave irradiation -- including this journalist.